Conference Report: Conference of February 16, 2018

On Tuesday morning, the Court released orders from its February 16 Conference. No new petitions for writs of certiorari were granted, and perhaps the most significant news was a failure to rule at all. Specifically, the Court did not rule on the federal government’s petition for review concerning the Trump administration’s termination of the policy known as Deferred Action for Childhood Arrivals (“DACA”), an Obama-era program that protected undocumented immigrants who came to the United States as children, known as Dreamers, from deportation.  On January 9, federal Judge William Alsup temporarily blocked the Trump Administration’s plan to end DACA that was announced in September 2017. In an unusual move, the Department of Justice petitioned the Court to consider Judge Alsup’s order, even before the Court of Appeals for the Ninth Circuit could consider it. Instead, of ruling on the petition last week, the Court put the petition on the agenda for the next conference, February 23, for which orders are expected on Monday, February 26. As this article in U.S News explains, however, it is difficult to make predictions about the Court’s ultimate action in this closely-watched case.

Also notable was the Court’s decision to deny cert in Silvester v. Becerra, a challenge to California’s 10-day waiting period for gun purchases. Justice Clarence Thomas was the only justice to dissent, arguing that the Court was undermining the holding in McDonald v. Chicago, a case in which the Court incorporated the Second Amendment against the states like other rights guaranteed by the Bill of Rights. “Nearly eight years ago, this Court declared that the Second Amendment is not a ‘second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees’” he writes. “By refusing to review decisions like the one below, we undermine that declaration.” Justice Gorsuch joined Justice Thomas’ dissent in a similar denial for certiorari in the 2017 case, Peruta v. California, but did not join him on this occasion.

With the Order List, the Court did issue one per curiam decision in CNH Industrial N.V. v. Reese. The Court reversed and remanded the lower court’s decision, noting it incorrectly interpreted M&G Polymers USA, LLC v. Tackett, a case that held that collective-bargaining agreements should be interpreted according to ordinary principles of contract law. In both M&G Polymers and CNH Industrial, the Court rejected interpreting collective bargaining agreements with special inferences in favor of reading those agreements in favor of lifetime vesting of health care benefits for retirees.

This post was written by ISCOTUS Fellow Elisabeth Hieber, Chicago-Kent Class of 2019, edited by ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018, and overseen by ISCOTUS Co-Director and Chicago-Kent faculty member Carolyn Shapiro.


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